Gay rights in Malawi

Homosexual acts are illegal in Malawi. Section 153 prohibits "unnatural offences". Section 156 concerning "public decency" is used to punish homosexual acts. Tourists who commit acts of homosexuality with locals can be prosecuted under article 156 and expelled as "undesirable aliens".

In late December 2009, a trans woman and a man, Tiwonge Chimbalanga and Steven Monjeza, were arrested for holding a traditional 'engagement' party. They were imprisoned in Blantyre, were denied bail and stood trial. On 18 May, they were found guilty, although there has been an international outcry from LGBT solidarity groups On 29 May 2010, President Bingu wa Mutharika pardoned both individuals.

Malawian Constitution

Non-discrimination on the grounds of sexual orientation is not explicitly referred to in the Malawian constitution (Article 20); although human rights lawyer Chrispine Sibande has recently argued that it may be covered under the 'other status' category. However, there has no been no official legal ruling to this effect.

Malawian society

Homosexual acts are proscribed under the Malawi Penal Code of 1930, drafted when Malawi was under British colonial rule and retained after independence. No specific laws against homosexuality were in place before British rule.

Homosexuality remains largely a taboo subject in the generally conservative country. In 2007 the Anglican Church sent a pro-gay rights Bishop, Nick Henderson, to head a diocese in rural Malawia. However, the congregation did not accept him and protests led to the death of a church member.

In 2009 Mary Shawa, secretary for nutrition, HIV and AIDS in the president's office, argued that Malawi must recognise the rights of its gay population to be able to step up its fight against AIDS. This was the first public government comment on homosexuality in the broady conservative country. Shawa said that Malawi would not be able to fight the virus without giving gays access to HIV and AIDS services. The Centre for the Development of People (CEDEP), an organisation working with homosexuals, has said the HIV prevalence rate was at 25 percent among the country's gay population.

In January 2010, Peter Sawali was arrested for hanging a sign that read "gay rights are human rights."

In April 2010, President Bingu wa Mutharika condemned acts of homosexuality seeing it is a strange act in Malawi, describing it as a foreign culture and tradition (mwambo) which Malawians did not know before. He claimed the country was being haunted by several ills, among them domestic violence, child abuse, and the cutting and selling of private parts.

The U.S. Department of State's 2010 Human Rights Report found that, in 2010, "societal violence and discrimination based on sexual orientation occurred. The Center for Development of the People (CEDEP) reported that several cases of violence resulting in serious injury were perpetrated against gay men during the year. These attacks were not reported to police." The report also noted that "a 2008 study by CEDEP found that approximately 34 percent of gay men in the country had been blackmailed or denied services such as housing or healthcare due to their sexual orientation. Additionally, 8 percent of those surveyed said they had been beaten by police or other security forces due to their sexual orientation."

Chimbalanga and Monjeza

On 18 May 2010, a Malawian couple, a trans woman and a man, were convicted by the Malawian courts for having committed "unnatural offenses" and "indecent practices between males" under sections 153 and 156 of Malawi's criminal code, following arrest at their home in Blantyre. Local newspapers had reported that Tiwonge Chimbalanga (born c. 1984) and Steven Monjeza (born c. 1990) had participated in a public same-sex chinkhoswe, or engagement ceremony. The couple was sentenced on 20 May to the maximum 14 years in prison with hard labour, with the judge, magistrate Nyakwawa Usiwa-Usiwa telling the couple: "I will give you a scaring sentence so that the public be protected from people like you so that we are not tempted to emulate this horrendous example," and "Malawi is not ready to see its sons getting married to its sons."

The trial and sentences were condemned by regional human rights organizations including AIDS and Rights Alliance for Southern Africa (Arasa) the Southern Africa Litigation Centre (Salc), the Centre for the Development of People (CEDEP) and the Centre for Human Rights and Rehabilitation (CHRR). In addition, international human rights organizations such as Amnesty International and IGLHRC reacted with condemnation, as did donor entities and governments such as the UK government, Germany, the African Development Bank (AfDB), Norway, the European Union and the World Bank, who operate under the Common Approach to Budget Support (CABS).

Following pressure from civil rights groups, President Jacob Zuma of South Africa also condemned the imprisonment and discrimination against gay men and women. The singers Madonna and Elton John have also been vocal in their condemnation.

However, the Malawi Council of Churches (a grouping of Anglican, Baptist, Evangelical and Presbyterian churches) advised the Malawi government to retain current laws against homosexuality in the criminal code and to disregard the pressure from donor countries, advising the countries to "respect Malawi’s cultural and religious values and refrain from using aid as a means of forcing the country to legalise sinful acts like homosexuality in the name of human rights." To date the Roman Catholic Archbishop of Blantyre, Tarcisius Gervazio Ziyaye, the most senior cleric in the predominantly Catholic state, has not made any public statements either in favour of the sentence or in condemnation of the treatment.

The International Women's Health Coalition, OSISA, and Gender Dynamix, identified the imprisonment of Tiwonge, in particular, as an issue of transphobia because Tiwonge identifies as a woman and dresses in women's clothing; the groups criticized international media reporting of the trial and sentencing because most outlets did not observe Tiwonge's gender identity in their direction of attention to the issue of marriage equality for same-sex couples.

The sentencing has led to debate in the media about whether it was fair, or whether legislation is out of date.

On 29 May 2010, President Bingu wa Mutharika pardoned both individuals, during a visit by Ban Ki-Moon the UN Secretary General. Government ministers have indicated that they could be re-arrested if they continued their relationship.

In December, after being physically attacked in the months since the pardon, Tiwonge filed papers for asylum in Canada. Her application was facilitated by the Global Justice Institute of the Metropolitan Community Church.